Craig Banner [2019] EWCA Crim 1288

In R v Craig Banner [2019] EWCA Crim 1288 the Court of Appeal dismissed an appeal against an extended sentence of 18 years imposed for aggravated burglary and causing grievous bodily harm with intent.

Mr Banner was convicted after trial on 23 November 2018 of aggravated burglary contrary to section 10(1) of the Theft Act 1968 and causing grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861. On 20 December 2018 His Honour Judge Williams sentenced him for each offence to an extended sentence of 18 years, comprising a custodial term of 14 years and an extension period of four years, both concurrent. The single judge granted leave to appeal on the ground that the judge had erred in finding the dangerousness provisions applicable.

Mr Banner and the victim Mr Colin Jones lived in the same block of flats and had known each other for a few months before they fell out and stopped speaking. On 25 July 2018 Mr Jones was at home when he received a telephone call from Miss Stevens, Mr Banner’s then partner. About 15 minutes after a further unanswered call, Mr Jones heard a knock on his door. As soon as he opened it Mr Banner burst in and struck him on the head with a hammer. Mr Jones attempted to protect himself with his hands but Mr Banner continued to hit him with the hammer whilst saying “I’m going to fucking kill you.” Mr Banner at some stage dropped the hammer but continued the assault with his fists. When the attack ceased he left, threatening to send a friend if Mr Jones reported him to the police. Mr Banner then attempted to conceal his actions by washing his bloodstained clothes. A neighbour flagged down a nearby police car. Officers found Mr Jones with serious injuries and tracked Mr Banner down to a nearby pub where he was arrested. He made incriminating remarks whilst being restrained and sought to deny involvement by suggesting he had found Mr Jones already covered in blood when he had gone to the flat to obtain some Rizlas. Mr Jones suffered a fractured skull that might require a metal plate, fractures to both hands requiring casts, and the possible loss of two fingers. His victim personal statement made clear the effect had been traumatic and the physical impact would be lifelong.

The sentencing judge described the attack as pitiless and the attempts at concealment as cynical. He treated the section 18 offence as the lead count and applied the relevant guideline, concluding it was a Category 1 offence with a starting point of 12 years’ imprisonment and a range of 9 to 16 years. The judge then considered aggravating features. These included Mr Banner’s previous convictions for a total of 84 offences spanning four decades. Several were offences against the person, including three assaults occasioning actual bodily harm and one offence contrary to section 20 of the Offences against the Person Act 1861. The judge noted that the last offence of violence was over 20 years ago and that the pattern of offending since 2000 was less serious and less frequent. He noted also that there had been only one previous period of imprisonment. Further aggravating features were the location in the victim’s home, the ongoing effect of the injuries, and the attempts to dispose of and conceal evidence. Taking account of all those features the judge considered an increase in the starting point to 14 years was warranted. He found no mitigating features.

The judge proceeded to consider whether Mr Banner was to be regarded as dangerous. In doing so he took account of the pre-sentence report. Under the heading Assessment of the Risk of Serious Harm the report noted that Mr Banner had a significant level of criminogenic need directly or indirectly causally linked to his behaviour, that he presented a high risk of recidivism, that whilst the nature of his previous offending did not suggest he had caused victims to suffer serious harm, his convictions were nevertheless serious, that past behaviour was the most reliable indicator when considering risk of serious harm to others but not the only predictive factor, and that in the absence of demonstrating that he could maintain a drug-free lifestyle, cognitive reasoning skills and self-management skills there were significant issues associated with his risk of harm. Whilst he had achieved stability in other areas of his life he was assessed as presenting a high risk of harm. Taking the circumstances of the offence into account and the matters set out in the report, the judge concluded that there was a significant risk that Mr Banner would commit specified offences and that by doing so would cause serious physical or psychological harm to one or more persons. He concluded that Mr Banner was to be regarded as a dangerous offender.

The judge considered whether a determinate sentence of imprisonment was sufficient and referred to R v Bourke [2017] EWCA Crim 2150. He stated that the identified criminogenic factors contributing to the risk of re-offending were longstanding and had not been addressed by the imposition of a single custody sentence and many non-custodial sentences in the past and were to be regarded as ingrained. Mr Banner had never experienced a substantial term of imprisonment supported on his release by a lengthy period of licence and had served only one period of custody, three months’ detention in a young offender institution imposed in 1994. It was argued that the length of an appropriate immediate custodial sentence meant he would spend a long time in custody before his release on licence and would have the opportunity to address the issues identified in the pre-sentence report. The judge reflected on that position and considered R v Phillips [2019] 1 Cr App R (S) and R v White [2018] EWCA Crim 2142 as well as Bourke. He stated that the nature and circumstances of the incident caused him considerable concern and that he was sure it was necessary to impose extended sentences for the protection of the public.

On appeal Mr Davis, who had not appeared at trial, submitted that the dangerous offender provisions did not apply, that even if Mr Banner was dangerous an extended sentence was not appropriate, and that the period of extension was too long. He highlighted that the most recent conviction for an offence of violence was over 20 years ago in 1997, that there were no convictions for weapons-related offences, and that there was only a medium risk of serious recidivism. He submitted that an immediate determinate sentence alone would adequately reflect the seriousness of the offending and would not offend the public interest or the interests of justice.

As to the assessment of dangerousness Mr Justice Choudhury, giving the judgment of the court, noted that the judge appeared to rely specifically on the circumstances of the offences and the assessment in the pre-sentence report. He referred to R v Lang [2005] EWCA Crim 2864, which established that in assessing the risk of further offences being committed the sentencer should take into account the nature and circumstances of the current offence, the defendant’s history of offending including not just the kind of offence but its circumstances and the sentence passed, whether the defendant demonstrated any pattern, social and economic factors including accommodation, employability and education, associated relationships and drug or alcohol abuse, and the offender’s thinking, attitude towards offending, supervision and emotional state. Information in relation to these matters would most readily, but not exclusively, come from antecedents, pre-sentence, probation and medical reports. The pre-sentence report in this case was clear that notwithstanding the pattern of recent offending, which might not of itself give rise to the conclusion that there was a significant risk of serious harm, there were several other factors – factors pertaining to Mr Banner’s criminogenic needs, thinking skills and offending associated with continued substance abuse – that gave rise to a high risk of harm. The judge was entitled to rely upon that conclusion. The offences involved a pitiless and unprovoked attack with a hammer resulting in very serious and life-changing injuries, and it was a matter of sheer good fortune that the victim did not die. The judge was entitled, based on these matters, to reach the conclusion that Mr Banner was dangerous and did not err in so doing.

As to whether the judge erred in considering that an extended sentence was appropriate, the court noted that the judge did expressly consider that question. His reasons for regarding a determinate sentence as insufficient appeared to be that there remained a high risk of re-offending because of ingrained criminogenic factors contributing to the risk which had not been addressed by the many non-custodial sentences and single custodial sentence in the past. The other factor was the nature and circumstances of the offence itself. Although the reasoning could be said to be somewhat sparse, it sufficiently indicated that the judge was not satisfied that a determinate sentence would address the risk of re-offending and the high risk of harm. The pre-sentence report specifically referred to poor engagement with probation services thus far. The conclusion reached by the judge was one he was entitled to reach based on the information available to him. Mr Banner was an individual with a long and despicable record of offending. Whilst much of that history did not involve serious acts of violence, the many non-custodial sentences imposed on him had not achieved significant improvement in behaviour. That, taken in conjunction with the savagery involved in the offences, was clearly capable of giving rise to a real concern that a determinate sentence would not suffice to diminish the risk of serious harm and that an extended sentence was appropriate.

Finally, in relation to the period of extension, the court noted that this was not the highest level of extension and that in the circumstances a four-year period could not be said to be manifestly excessive. In short, the appeal was dismissed, the judge having been entitled to find Mr Banner dangerous and to conclude that an extended sentence was necessary for the protection of the public.

Bourke [2017] EWCA Crim 2150; [2018] 1 Cr App Rep (S) 298
White [2018] EWCA Crim 2142
Lang & Ors [2005] EWCA Crim 2864